Obama to support Internet wiretapping program

United States President Barack Obama is likely to endorse a Federal Bureau of Investigation effort that would ensure all Internet companies in the US provide a way for the government to conduct undetected, backdoor surveillance.

The FBI has been considering solutions to their so-called
“Going Dark” problem as intricate methods of encryption
and advances in technology have made it increasingly difficult for
the federal government and law enforcement to gain access to online
communications conducted in the shadows of the Web. Should the
latest efforts of the FBI move forward, though, Internet companies
that act as any conduit for correspondence of any kind would be
heavily fined if they don’t include in their infrastructure a way
for the government to eavesdrop on that dialogue in real time.

At a press conference in Washington, DC in March, FBI general
counsel Andrew Weissmann said the Department of Justice was determined to have
the means to wiretap any online communication by 2014 and called it
“a huge priority for the FBI.” Further developments last
month revealed that the FBI was considering a
fine-based model under which Internet companies would be forced to
comply or risk being penalized beyond repair.

On Tuesday, New York Times reporter Charlie Savage cited Obama
administration officials as saying the president “is on the
verge of backing” that very plan.

Savage explained that while companies would be allowed to
operate without giving the government backdoor access, the fees
would likely limit the number of entities willing to challenge the
order. As RT reported last month, a company that doesn’t
comply with the FBI’s orders would be fined $25,000 after 90 days.
Additional penalties would then be tacked on every day an Internet
service provider, website or other company fails to comply — with
the price of the penalty doubling each day they don’t assist
investigators.

“While the FBI’s original proposal would have required
Internet communications services to each build in a wiretapping
capacity, the revised one, which must now be reviewed by the White
House, focuses on fining companies that do not comply with wiretap
orders,” wrote Savage. “The difference, officials say, means
that start-ups with a small number of users would have fewer
worries about wiretapping issues unless the companies became
popular enough to come to the Justice Department’s
attention.”

Savage quoted a statement in his article from Weissmann in which
the FBI attorney said, “This doesn’t create any new legal
surveillance authority.” Instead, said Weissman, “None of
the ‘going dark’ solutions would do anything except update the law
given means of modern communications.”

“This always requires a court order,” he said.

Coincidently, that same issue has had major developments in its
own right this week. On Wednesday morning, CNET reporter Declan
McCullagh wrote that the Justice Department circulated memos in
which they insisted that obtaining a search warrant isn’t necessary
to eavesdrop on Internet communication of any sort.

“The US Department of Justice and the FBI believe they don't
need a search warrant to review Americans' e-mails, Facebook chats,
Twitter direct messages and other private files, internal documents
reveal,” wrote McCullagh, citing a government documents
obtained by the American Civil Liberties Union and provided to
CNET.

According to McCullagh, those documents include very specific
instructions from high-importance officials that demonstrate the
Justice Department’s disinterest in applying established law when
it comes to eavesdropping on Americans. While Weissmann made the
argument that the FBI plan reportedly backed by the president won’t
change what rules the DoJ operates by, the memos obtained by
McCullagh paints the Obama White House as an administration
unwilling to work with the already broad surveillance powers
provided to it.

In one memo unearthed by the ACLU, McCullagh said the US
attorney for Manhattan instructed his office that an easy-to-obtain
legal paper that requires no judicial oversight is all that’s
needed to obtain personal correspondence.

“[A] subpoena -- a piece of paper signed by a prosecutor, not
a judge -- is sufficient to obtain nearly ‘all records from an
ISP,’” McCullagh wrote.

In another instance, McCullagh said the US attorney in Houston,
Texas obtained the "contents of stored communications" from
another ISP without getting a judge to sign a warrant.

One current law that limits how and when authorities can obtain
a suspect’s email pursuant to a criminal investigation, the
Electronic Communication Privacy Act, provides that while a warrant
is needed for relatively recent correspondence, a comparably easier
to get administrative subpoena is all that’s required to get
communication older than 180 days. Provisions of the ECPA have been
largely unchanged since it was passed in the mid-1980s, but last
month a Senate Judiciary Committee approved an amendment that would
require a warrant in all instances.

In advocating for fewer restrictions when obtaining store
communication, the FBI’s Wessmann said in April that another law,
1994’s Communications Assistance for Law Enforcement Act, needs to
be expanded so investigators can leap over current hurdles that
keep them from conducting real time wiretaps of online
discussions.

“You do have laws that say you need to keep things for a
certain amount of time, but in the cyber realm you can have
companies that keep things for five minutes,” he said. “You
can imagine totally legitimate reasons for that, but you can also
imagine how enticing that ability is for people who are up to no
good because the evidence comes and it goes.”

In the wake of the Boston Marathon bombing on April 15, renewed
calls across the country have been made to make it easier for
investigators to quickly conduct surveillance — in and off the Web.
A recent poll found that roughly two-thirds of Americans favored
more surveillance cameras in public places, and now the nation’s
top law officials are asking for increased spy power not just on
the streets but on the Web.

Earlier this month, Google Chairman Eric Schmidt said at a
discussion in Washington, “When you come across an advocate for
one thing — an advocate for security, and advocate for privacy —
they’re often arguing from a position without understanding that
it’s a two-edged sword.”

“For example, very strong encryption would allow you and I to
have a very, very secure communication: If we were criminals, if we
were dissidents, if we were martyrs or if we were just doing a
little business,” he said. “If you could figure out a way to
ban very strong encryption from evil people and only allow good
people…then this would be easy,” he said.